Re G (A Child)

The focus of this appeal is upon two aspects of judicial process in Family proceedings. The first relates to the need for a judge to conduct a proper welfare balancing exercise before making a full care order, and the second relates to the degree of scrutiny to be expected from a circuit judge when considering an appeal in care proceedings.

The proceedings relate to a young boy, J, who was born on 3 ^rd May 2004, and was therefore nearly eight years of age when District Judge Tempia granted a full care order with respect to him in the Inner London and City Family Proceedings Court on 30 ^th April 201J's mother appealed the district judge's decision, but that appeal was dismissed by Her Honour Judge Hughes QC, sitting in the Principal Registry of the Family Division, on 23 ^rd July 201The mother now brings a second appeal to this court following my decision on 14 ^th March 2013 to grant her limited permission to appeal.

As the substance of the appeal relates to the adequacy of the judicial process, both at first instance and on appeal, and as a successful appeal in this court will inevitably result in the matter being re-heard, it is neither necessary nor wise for me to comment in detail upon the factual background. In any event, the key dates leading up to the institution of care proceedings can be shortly stated.

J's mother ["M"] was born in Nigeria and lived there until she left that country in 2003 as a result of the civil unrest that was at that time taking place. She fled to Ireland and sought asylum there. By that time she was pregnant with J and in due course J was born to her in Dublin. In 2005 M was granted leave to remain in the Irish Republic. There is a history of involvement with the Irish social services and in 2007 it is established that M left J at the social services offices in Dublin thereby abandoning him to the care of the Local Authority. He remained in foster care for most of one year, but at the conclusion of proceedings in Ireland J was returned to M's care with no statutory order being made.

In December 2009 M and J travelled to London and sought to set up home in the London Borough of Southwark. Records show that during the first twelve months of their time here there was some limited interaction with the local social services. However, on 9 ^th December 2010 M attended the social services office and asked for J to be taken into care, initially for a period of two weeks. Thereafter, save for one telephone call, the social services had no contact from J's mother for over three weeks. Care proceedings were started and J has effectively remained in foster care from the time that his mother left him at the social services offices in December 2010 until the present day.

The final hearing of the local authority application for a care order was heard over the course of three days by District Judge Tempia in the Family Proceedings Court in April 2012. A reserved judgment was then handed out to the parties at a hearing on 30 ^th April. The threshold criteria were apparently agreed and were set out in a commendably short schedule which I reproduce here in its entirety:

"J has suffered and is at risk of suffering significant harm due to the care he has received and would receive if the order was not made, not being what a reasonable parent would provide.

The reasons are:

1. On 9 ^th December 2010 J was left at social services offices by his mother. She left an explanatory letter on that occasion.

2. M did not meet with social workers, return to collect J or attend for contact with him until 4 ^th January 2011. M did telephone the Local Authority on 13 ^th December 2010.

3. M has previously left J in social services offices in Dublin in 2007 leading to a period of foster care (believed to be 9–12 months)"

It is also relevant to record that in 2008 J was diagnosed with autism spectrum disorder with a score in the "severe" range of the Childhood Autism Rating scale. He was also assessed as having a "moderate learning disability", significant hyperactivity and epilepsy.

Before the district judge the Local Authority sought a full care order. The Local Authority care plan was for J to be placed in a suitable long-term foster placement for the remaining ten years of his minority. The Local Authority case was endorsed and supported by the Children's Guardian.

J's father, a Mr G, has remained in Nigeria throughout and played no part in the proceedings.

Before the district judge M sought the return of J to her care but she conceded that the threshold criteria in Children Act 1989, s 31 were met and that any plan to place J back in her care would involve an element of support from the Local Authority and any rehabilitation would be conducted either via a short series of interim care orders or under the umbrella of a supervision order.

The district judge heard evidence from a consultant psychiatrist, who had assessed M and also from a chartered clinical psychologist who had conducted a similar assessment. No direct evidence was heard in relation to M and J's time in Ireland, but the court had received disclosure of relevant social services and court material from the Irish Republic. A full parenting assessment had been conducted by the Local Authority social worker who had held the case for much of its life, and the judge heard from that worker together with the current social worker. M also gave evidence, as did the Children's Guardian.

The focus of the hearing was largely upon whether or not M could be relied upon to provide stable and secure parenting for J without any further unplanned acts of abandonment. In addition M sought to explain and minimise the circumstances around the two accepted episodes of abandonment.

Before turning to the aspect of the district judge's judgment which has fallen for criticism during the course of this appeal, it is right to record that insofar as the judgment seeks to summarise and analyse the expert, professional and lay evidence, it is an impressive piece of judge-craft. The most significant conclusions from the evidence appear to be:

a) The assessment of M by both experts was essentially normal save that she exhibits a clear potential to respond adversely to stress but, as the psychologist put it, these features were in the sub-clinical range and meant that "similar personality features would be expected to be found in a sub-section of the normal population".

b) During the proceedings in Ireland M had professed and displayed insight into the Local Authority concerns arising from the act of abandonment, however, as soon as the proceedings ended M began to move to different parts of Dublin, moving J from school to school and failing to engage with professional support.

c) The social worker's parenting assessment had been essentially favourable and recommended rehabilitation of J to M's care. However, by the time he gave evidence, the social worker had changed his recommendation as a result of reading the paperwork that had subsequently arrived from Ireland. He considered that there was a clear potential for history to repeat itself, given that M's actions in London in December 2010 were very similar to those in Dublin in 2007, and this indicated that J would be at risk of repeat behaviour in the future. He also reported that his professional relationship with M had broken down after he had given advice which was perceived by M as criticising her parenting skills.

d) The current social worker recorded a good working relationship with M but she too adhered to a care plan for long term fostering.

e) The Guardian expressed concern that M lacked insight into the circumstances that led her to act as she had done in the past. She considered that it was "a risk" to place J back in M's care and it was not a risk that she would recommend taking.

The district judge made a number of positive findings about M, in particular that she loved J very much, she is his only relative in this country and they have a very strong bond. M was also given credit for the work that she had put in place to gain a support network in London and the work that she had done for herself in learning how to cope with stress. However, the district judge was very concerned about the information that had arrived from Ireland. She was also concerned about M's inability to work with the professionals in the case and her apparent lack of insight.

The district judge concluded her short passage of analysis in the following terms:

"However, my view is that given her inability to work [with] the professionals in this case, her lack of insight, and the history in Ireland I find she will be unable to prioritise J's needs when she finds herself in the inevitable stressful situation of looking after J full time."

In terms of the structure of the judgment, the district judge went on to hold that the threshold criteria were met, she summarised the range of available orders as being a care order, a supervision order or no order at all and recorded that M "urges me to make no order at all and to return J to her care". The...